US: Revised Detainee Bill Still Fundamentally Flawed

(Washington, DC) – Reported congressional changes to a defense authorization bill, aimed at averting a presidential veto, fail to address fundamental flaws in the bill’s proposed treatment of terrorism suspects held by the US, Human Rights Watch said today. President Barack Obama had previously threatened to veto the bill, the 2012 National Defense Authorization Act (NDAA), over detainee provisions, and he should hold firm on that promise, Human Rights Watch said.

“The latest version of the defense authorization bill does nothing to address the bill’s core problems – legislated indefinite detention without charge and the militarization of law enforcement,” said Andrea Prasow, senior counterterrorism counsel and advocate at Human Rights Watch, “With these fundamental problems remaining, the administration should make good on its veto threat.”

The NDAA authorizes, but is not essential to, funding for most Defense Department operations. The House of Representatives passed its version of the NDAA on May 29, 2011, and the Senate passed its version on December 1, 2011. Both chambers of Congress met this week to try to reconcile differences between the bills. The version they produced – the conference report – reportedly largely adopts the Senate version of the bill with only minor changes. It continues to authorize indefinite detention without charge for certain terrorism suspects and mandates military detention for a subset of terrorism suspects. It provides that the president can waive mandatory military custody only if he determines doing so is in the national security interest of the United States.

The new bill also adopts from the House version a bar to the transfer of detainees currently held at Guantanamointo the US for any reason, including for trial. In the last 10 years over 400 people have been prosecuted in US federal courts for terrorism related offenses. Meanwhile in Guantanamo military commissions during that same period, only six cases have been prosecuted.

The bill also further extends restrictions, imposed last year, on the transfer of detainees out of Guantanamoto their home countries or to third countries based solely on the alleged conduct of other former detainees. Since similar restrictions were enacted the administration has not transferred a single detainee out of Guantanamo, even though it had previously cleared them for release.

Before the House and Senate passed their versions of the bill, the administration issued veto threats over the detainee provisions. During Senate deliberations on its version of the bill, several senior administration officials, including the secretary of defense, attorney general, director of national intelligence, director of the FBI, and director of the CIA, all raised objections that mandating military detention with few exceptions would interfere with the administration’s ability to effectively fight terrorism. Those detention provisions reportedly remain in the new conference report version of the bill.

“Congress has chosen to disregard the concerns of key national security and law enforcement officials in the US, and instead propose a law that would actually undermine US counterterrorism efforts," Prasow said. “The president should veto this bill because it not only violates basic principles of due process but also will make the US less safe.”